Vinny's Landscaping, Inc. v. United Auto Credit Corporation et al

Filing 9

ORDER Denying Without Prejudice 6 Motion to Certify Class. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Vinny’s Landscaping, Inc.,
Plaintiff,
v.

Case No. 16-10275

United Auto Credit Corporation, et al.,

Sean F. Cox
United States District Court Judge

Defendants.
___________________________________/
ORDER DENYING
PREMATURE MOTION FOR CLASS CERTIFICATION WITHOUT PREJUDICE
In cases involving statutory damages that are small in amount, like TCPA cases,
Defendants often attempt to “pick off” the named plaintiff in a putative class action by making a
Rule 68 offer of judgment that gives the named plaintiff all the relief that he or she would be able
to obtain on their individual claim.
Some courts have ruled that you cannot “pick off” a named plaintiff in a putative class
action if there is a motion for class certification pending. The Sixth Circuit has not ruled on this
particular issue. Nevertheless, in order to try to stop the defendant from picking off the named
plaintiff in a TCPA case, plaintiff’s counsel sometimes file premature “placeholder” motions
when they file a putative class action under the TCPA, or other statutes with small statutory
damages. That is what Plaintiff’s Counsel have done here.
In other cases involving this same scenario, this Court has denied such motions without
prejudice. See, eg. Wasvary v. WB Holdings, LLC, 2015 WL 5161370 (E.D. Mich. 2015). In

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doing so, this Court noted that other district courts have dismissed such motions as premature.
See Mey v. N. Am. Bancard, LLC, 2014 WL 6686773 at * 2 (E.D. Mich. 2014); Beaudry v.
Telecheck Svs., Inc., 2010 WL 2901781 at *2 (M.D. Tenn. 2010); and Minniti v. Eilers, 302
F.R.D. 655 (S.D. Fla. 2014). In Mey, the district court dismissed a Motion for Class
Certification that, like the one in this case, was filed simultaneously with the complaint,
explaining:
In this case, Plaintiff filed a motion for class certification simultaneously with her
Complaint, but prior to serving Defendant and prior to any scheduling conference
with the Court. Courts have held that the court need not hold in abeyance a class
certification motion which the plaintiff intentionally filed prematurely. Courts
typically dismiss premature motions. See, Beaudry v. Telecheck Serv., Inc., 2010
WL 2901781, at *2 (W.D. Tenn. July 20, 2010). Plaintiff argues that without a
pending class certification motion on the docket, the defendant, as in this case,
would be able to frustrate the class-action process by settling with the
named-plaintiff or by making a Rule 68 offer of judgment which would moot the
individual claim. Id. Courts, however, have rejected a “placeholder” motion for
class certification. Id.
Id. at *2.
This Court shall deny Plaintiff’s Motion for Class Certification without prejudice because
the motion is premature and there is neither a procedural rule nor any Sixth Circuit authority that
allows for the filing of such premature, “placeholder motions.”
Accordingly, the Court ORDERS that Plaintiff’s premature Motion for Class
Certification (Docket Entry No. 6) is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: January 27, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of record on
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January 27, 2016, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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